JAP. 2

Supreme Court (First Small Bench) Japan Telegram and Telephone Corporation, as succeeded by Nippon Telegram and Telephone Co., Ltd. v. Shigeko Kaneda

Authority of employer to order employee to undergo medical examination � problem of free choice of doctor � role of union

HEADNOTES

Facts

The Respondent who was an operator employed by the Plaintiff Telegram and Telephone Corporation and had been working at its office as a telephone operator, was found on July 5, 1974 to suffer from a shoulder-arm-neck syndrome by an orthopedist and, thus, to fall into the (health) instruction category of "needs a rest and medical treatment" as provided by the Corporation's Health Regulation. After a rest and medical treatment her condition improved so that she returned to her work on September 5 under an instruction category of "needs close attention" and on September 10 under "lighten work load (down to six hours a day)". However, on November 5, her condition became subject to "needs a rest and medical treatment" again, and this was followed by such ups and downs as resuming work on December 5 under "lighten work load (to four hours a day)" and on February 16, 1975, under "needs close attention". Taking the condition of the Respondent into consideration, the Plaintiff Corpora- tion transferred her from a telephone operator's job to desk work on September 5, 1974. Also, upon her request for workmen's compensation, the Plaintiff had her examined closely by an orthopedist at the Teishin (Telecommunication) Hospital on September 28, 1974, and determined on September 3 of the following year that her sickness was work-related; compensation was made accordingly. Since then the Respondent had received medical treatment a dozen or so times every month at the orthopedist's as well as, since April, 1977, a massatherapy three to nine times a month at a clinic in Obihiro City. However, her condition had not improved at all since February, 1975. On September 12, 1978, the Plaintiff Corporation, planning to carry out the fourth integrated close examination of tbe shoulder-arm-neck syndrome, as provided by the Collective Agreement, on the Respondent and one other employee following advice from an industrial physician at Health Center, directed the Respondent to undergo the examination and delivered a notice with detailed information such as the date of examination, place, names of medical sections to be visited and manuals for hospitalisation. Despite the Plaintifi's repeated attempt to persuade her and contrary to a company order issued by the Plaintiff through the director of the Obihiro Office, the Respondent refused to undergo the examination. Finally, she failed to comply with another company order to take the examination during October 9 through 22, the dates again arranged by the Corporation on her behalf; she alleged that the Sapporo Telecommunication Hospital was untrustworthy. On the other hand, the general secretary of the Obihiro chapter of the Sapporo Local of the Zendentsu (All Telecommunication Workers Union) - which had been advocating the necessity of the integrated close health examination provided for by the Collective Agreement among its members - received a notice from the Plaintiff on August 21, 1978, telling him that the Respondent and one other employee were scheduled to undergo the examination and conveyed it to them on the same day. Also, taking seriously the Respondent's refusal to comply with the company order of October 3, 1978 to undergo the examination, the general secretary decided to send for officers from the Local headquarters. In response the Local sent its president and other officers to the Obihiro office to persuade the Respondent to undergo the examination, but the latter turned them down, insisting that she could not trust in the Hospital and that she was afraid of a cancellation of the workmen's compensation. The Obihiro chapter of the union, taking a serious view of the fact that a company order had been issued in response to the Respondent's repeated refusal to take the examination, engaged in negotiation with the Corporation in the afternoon of Oc- tober 9, 1978. The negotiation was held in a closed meeting, but soon after the meeting started twelve women employees including the Respondent came into the room, neglecting orders from the officers of the chapter, and demanded an open session; consequently, the negotiation was stopped and never resumed due to a disturbance generated by an exchange of angry words. Meanwhile the Respondent abandoned her work for about 10 minutes at around 3:15 in the afternoon. On November 14 the Corporation imposed a disciplinary warning pursuant to Section 33 of the Japan Telegram and Telephone Law upon the Respondent for the following reasons: that the Respondent's refusal to undergo the health examination constituted disobedience in the meaning of Section 59, No. 3 of the Corporation's Rule of Employment; and that her abandonment of work fell within the definition of misconduct in Section 59, No. 18 of the Rule of Employment. The Respondent brought a suit against the Plaintiff Corporation at Obihiro Branch of Kushiro District Court, seeking a judgment to confirm the invalidity of the said disciplinary warning. The district court rendered a judgment for the Respondent (March 24, 1982) and on an appeal by the Plaintiff High Court sustained the district court decision for the following reasons (August 25, 1983): (1) In principle a person who undergoes medical treatment should enjoy the freedom to choose a physician whom he or she could trust. Also, upon the basis of a previous explanation as to the content of a medical treatment, he or she may freely decide whether to undergo it. It should not make any substantial difference whether such a medical treatment is primarily for the purpose of examination or for that of a cure. (2) Though under a legal obligation to care for the employees' health and safety, the Corporation may not enforce its health plan upon employees against their will,